This post is adapted from a law review article that may be downloaded here(citations available in the original).

Sir Matthew Hale and Sir William Blackstone explained that judicial opinions in England traditionally were a source of unwritten law, or lex non scripta, derived from custom and read from the bench but not transcribed in official reports or indexed in a formal corpus. Judicial opinions began as an oral medium, not a written record. They were considered evidence of what the law was, but not the law itself.

From the thirteenth to the fifteenth century, opinions were often written down, in French, and compiled in Year Books. Lawyers began citing opinions—some written, some unwritten—in their arguments before the courts, although there was no systematized mode of citation. As early as the fifteenth century, lawyers produced abridgements, or digests, to review the state of the law across England. These sketchy compilations summarized and classified opinions and could be referenced in the courtroom as authority for particular propositions. During the fifteenth and sixteenth centuries, a comprehensive scheme of methodical and widespread adherence to written precedent emerged gradually by slow degrees. However, not until the sixteenth and seventeenth centuries did judges and litigants treat opinions as authoritative and binding in a manner that resembled the modern sense of precedent. The publication of Sir Edward Coke’s Institutes of the Lawes of England over the course of nearly two decades during the early seventeenth century provided direction for both jurists and attorneys who wished to substantiate their arguments with concrete holdings. Still there were no certified court reporters or verbatim transcriptions; the enterprise of publishing reports or digests was often personal and selective, insofar as reporters often chose to record only cases they liked and to disregard cases they disliked.

From approximately 1600 to 1800, the British House of Lords enjoyed supreme appellate jurisdiction over cases in common-law and equity courts. During that time, the House of Lords did not publish reports of its decisions, seriatim or otherwise. Most cases were ultimately determined by intermediate appellate courts, including the Exchequer Chamber, the Court of Common Pleas, and the King’s Bench, which regularly issued seriatim opinions that were transcribed by reporters. Prior to American independence from Great Britain, appeals from colonial courts went before the Privy Council in England. The Privy Council reached decisions by majority vote but issued those decisions as unified pronouncements, regardless of dissenting views. Because all decisions of the Privy Council were subject to the King’s review, and the King, the site and symbol of the law or body politic, could not articulate simultaneous, contradictory positions, the appearance of unanimity within the Privy Council was paramount.

In its early years, after the adoption of the Judiciary Act of 1789, the United States Supreme Court (“the Court”), following the practice of English common-law courts—specifically the King’s Bench—typically rendered decisions in the form of per curiam and seriatim opinions. The near obligatory practice of rendering written opinions was an American innovation and a departure from the English custom of residual orality. The fact that the United States Constitution was written perhaps necessitated the textual documentation of judicial opinions in books, digests, and reports.

During the tenure of Chief Justice Oliver Ellsworth (1796–1800), the third Chief Justice of the Court, seriatim opinions became less common and were abandoned during the tenure of Chief Justice John Marshall (1801–1835), who orchestrated consolidated opinions among the justices, much to the chagrin of Thomas Jefferson. Justices who concurred with the prevailing rationale no longer authored a separate opinion to express their agreement. Justice William Johnson, a Jeffersonian Republican, was the notable exception, authoring nearly half of the dissents that were produced by members of the Court during his tenure on the bench. Chief Justice Marshall, for his part, authored most of the Court’s majority opinions, which were issued with the phrase “opinion of the Court” to lend the impression that the justices spoke with one voice. Collegiality and consensus-building must have been a high priority because, after work hours, the justices resided and dined together in a small boardinghouse on Capitol Hill, away from their families, where court conflicts could have incited personal quarrels. Abandoning the seriatim mode and dissenting opinions also quickened the publication process; over a quarter of the cases decided by opinion between 1815 and 1835 were published in no more than five days.

The period late in Chief Justice Marshall’s tenure to approximately 1905 involved the rise of dissenting justices. Chief Justice Marshall himself began to author dissents as the Court increasingly decided cases through majority rather than unanimous opinions. Dissents proliferated during the mid-nineteenth century and into the twentieth century. Justice John McLean and Justice Benjamin Curtis authored memorable dissents in Dred Scott v. Sandford. Forty-eight years later, Justice Oliver Wendell Holmes Jr.’s three-paragraph dissent in Lochner v. New York became one of the most influential legal writings in American history. Blackstone’s conviction that opinions were evidence of law but not actually law continued to some extent throughout the nineteenth century, yet it had been diminishing since the mid-eighteenth century. The notion of “caselaw,” or the idea that judicial opinions constituted law, did not gain currency until the twentieth century. Today it is mostly accepted without question or qualification.

The twentieth century ushered in the era of the “Great Dissenter,” a label that has been conferred on Justice Holmes and Justice John Marshall Harlan. By the 1940s, most cases involved separate opinions. Dissents and separate writings are now common. A jurist’s reasoning and argument typically enjoy precedential effect, but historically, under the English tradition of the common law, the judgment of the opinion was authoritative, and later courts could disregard the analysis from which that judgment followed. The results of an opinion, in other words, took priority over its reasoning.

American conservatism is rich and complex but too often simplified or ignored by academics who think they know what conservatism means. I applaud Allitt for taking conservatism seriously and for marshaling a wealth of evidence to support his thesis. Those who cannot identify what generally distinguishes a paleoconservative from a neoconservative, or who’re confused by the apparent hypocrisy of conservatives who call for big-government spending on military and surveillance while griping about big-government, need to read this book. Allitt provides clarity and direction for the uninitiated. He deserves not just our attention, but our admiration.

Allitt also suggests that the Federalists represent an early manifestation of conservatism. This classification would mean that Jefferson and his ilk were not conservatives, which would in turn imply that current Jeffersonians are not in keeping with a purely conservative tradition. Allitt offers this helpful and accurate note about Jefferson: “He might not have been the Jacobin his Federalist foes alleged, but neither can he easily be thought of as a conservative.” Many scholars and enthusiasts consider Jefferson to be a “classical liberal,” but the signification of that word relative to “libertarian” or “conservative” merely confounds definitional precision: All three words have been used interchangeably and negligently in recent decades. It may not matter if Jefferson is called “conservative” or “liberal,” especially if those terms cause people to short-circuit reflection or affix a contemporary label to a complicated man living in a complex, radically different era.

Allitt’s book is a fine contribution to and about conservative letters. I recommend it to anyone who thinks he can explain conservatism.

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